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One two three war, what the hell’s impeachment for? [VIOLENTLY UPDATED]

Whatever happened to “impeachment”? Only two months ago, that was the word on leading Democratic lips as they assailed President Bush for “illegal” warrantless NSA wiretaps against al Qaeda suspects. But at Monday’s Senate hearing on the issue, the idea never even made an appearance.

The reason isn’t because liberal critics have come to some epiphany about the necessity of executive discretion in wartime. The reason is they can read the opinion polls. And the polls show that a majority of Americans want their government to eavesdrop on al Qaeda suspects, even—or should we say, especially—if they’re talking to one of their dupes or sympathizers here in the U.S.

In short, the larger political battle over wiretaps is over, and the President has won the argument among the American people. We hope Dan Bartlett, Steve Hadley and other White House message-makers notice the difference between this outcome, on a matter on which they bothered to fight, and so many other controversies when they ceded the field to their opponents (“torture,” Joe Wilson).

All the more so because the policy debate over Presidential authority continues, and on a dangerous path. Judging by Monday’s hearing, Senators of both parties are still hoping to stage a Congressional raid on Presidential war powers. And they hope to do it not by accepting more responsibility themselves but by handing more power to unelected judges to do the job for them.

The preferred vehicle here is an expansion of the 1978 Foreign Intelligence Surveillance Act, or FISA, the Carter-era law that imposed judicial consent for domestic wiretaps during the Cold War. “If you believe you need new laws, then come and tell us,” Senate Democrat Pat Leahy told Attorney General Alberto Gonzales during Monday’s hearing. Chairman Arlen Specter and Members in both parties seemed to be saying, “We’re from Congress and we’re here to help you.”

But note well that the Members aren’t talking about sharing responsibility themselves for wiretap decisions. That they want no part of. The leadership and Intelligence Committee chairs were already briefed numerous times on the NSA program, only to have several of them deny all responsibility when the story was leaked. Intelligence Vice Chairman Senator Jay Rockefeller (D., W.Va.) even wrote his own not-my-fault letter that he kept secret until the story broke, when he released it in order to embarrass the Bush Administration. The real message of this episode is: “We’re from Congress and we’re here to second-guess you.”

What FISA boils down to is an attempt to further put the executive under the thumb of the judiciary, and in unconstitutional fashion. The way FISA works is that it gives a single judge the ability to overrule the considered judgment of the entire executive branch. In the case of the NSA wiretaps, the Justice Department, NSA and White House are all involved in establishing and reviewing these wiretaps. Yet if a warrant were required, one judge would have the discretion to deny any request.

[…]

FISA is the intelligence equivalent of asking battlefield commanders in Iraq to get a court order before taking Fallujah. “We can’t afford to impose layers of lawyers on top of career intelligence officers who are striving valiantly to provide a first line of defense by tracking secretive al Qaeda operatives in real time,” as Mr. Gonzales put it.

We already know FISA impeded intelligence gathering before 9/11. It was the reason FBI agents decided not to tap the computer of alleged 20th hijacker Zacarias Moussaoui. And it contributed to the NSA’s decision not to listen to foreign calls to actual hijacker Khalid al-Midhar, despite knowing that an al Qaeda associate by that name was in the country. The NSA feared being accused of “domestic spying.”

Passed in the wake of the infamous Church hearings on the CIA, FISA is an artifact of post-Vietnam and post-Watergate hostility to executive power. But even as Jimmy Carter signed it for political reasons, his own Attorney General declared that it didn’t supercede executive powers under Article II of the Constitution. Every President since has agreed with that view, and no court has contradicted it.

As federal judge and former Deputy Attorney General Laurence Silberman explained in his 1978 testimony on FISA, the President is accountable to the voters if he abuses surveillance power. Fear of exposure or political damage are powerful disincentives to going too far. But judges, who are not politically accountable, have no similar incentives to strike the right balance between intelligence needs and civilian privacy. This is one reason the Founders gave the judiciary no such plenary powers.

Far from being some rogue operation, the Bush Administration has taken enormous pains to make sure the NSA wiretaps are both legal and limited. The program is monitored by lawyers, reauthorized every 45 days by the President and has been discussed with both Congress and the FISA court itself. The Administration even decided against warrantless wiretaps on al Qaeda suspects communicating entirely within the U.S., though we’d argue that that too would be both constitutional and prudent.

Any attempt to expand FISA would be the largest assault on Presidential power since the 1970s. Congress has every right to scrutinize the NSA program and cut off funds if it wants to. But it shouldn’t take the politically easy route of passing the buck to the judiciary and further limiting the President’s ability to defend America. Far from expanding FISA, Congress could best serve the country by abolishing it.

[my emphases]

Regular readers of this site will, I hope, recognize in the Journal’s succinct piece many of the arguments I have been making here for several weeks—the two most important of which, from my perspective, are these:

1) That by making the argument that the President is required to go through a FISA warrant process for gathering foreign intel wherein one side of the communication takes place within the US, critics of the program are, in effect, attempting to turn an Executive war power (signals intel authorization) into a domestic law enforcement power—and so expands the scope of their power extraconstitutionally (even as they then hand the reins over to the judiciary, which, sadly, too many legislators, especially those on the liberal-Democrat side of the aisle, often look to as a kind of superlegislature for liberal causes). This, in turn, takes power away from the executive branch; and 2) FISA was NEVER INTENDED to supercede a President’s Constitutional authority (numerous lower court rulings have deferred to that presumed authority with regard to foreign intel surveillance)—and, when extended into the realm of military surveillance in a time of war, may well be unconstitutional on its face.

Critics of the program—mostly civil libertarian absolutists, partisan Democrats, and constitutional law specialists—all claim to hold dear the rule of law in proclaiming that the administration may have authorized a program that violates both the 4th Amendment and several FISA clauses (using hypothetical scenarios to make their points), and yet all are able to dismiss (or, at least, worry) the President’s Constitutional Article II inherent authority (put into play by the passing of the AUMF), and to minimize the already available and Constitutionally-provided checks (impeachment, cutting off funding) on the so-called “imperial” powers of the President —powers granted him, mind you, not by Richard Nixon or J Edgar Hoover, but rather by the founding fathers, and in spite of the heady idealism of the 60s counterculture movement that, once it matured into a vocal branch of the Democratic party, has consistently attempted to move government power disproportionately away from the executive branch and toward the legislative and judicial branches in an effort to reshape the balance of power. That the Bush administration has made it a point of pride to push back is not, as the saying goes, a bug, but rather a feature).

I think this is only the case if FISA holds jurisdiction over the program in question, which I don’t think it does (except when finessed within that jurisdiction by the positing of carefully crafted hypotheticals). Instead, I continue to believe that the administration’s strategy, in light of the initial NYT leak, has been to bait FISA advocates (who tend to extol judicial and legislative power) into a debate that will end with 1) program critics looking weak on national security insofar as they insist on being deferential, in times of immediate danger, to unclear and contested legal statutes that raise serious separation of powers concerns, rather than in taking aggressive actions that could very well have prevented follow up attacks (couple this with their concurrent resistance to the PATRIOT Act); and 2) reassert executive power while, happily, bringing public discourse back to the topic of national defense and security, where the GOP excels.

Should a forced legal battle end with FISA being ruled unconstitutional (insofar as its staunchest advocates pursue the claim that it constrains the President’s ability to authorize particular military operations, even after Congressional authorization), so much the better.

[update 2: In a post bemoaning having certain sites on his blogroll, Chris Lawrence reduces my position on the NSA foreign surveillance story to this: “Shorter Jeff Goldstein and Wall Street Journal editorial board: Separation of powers is for idiots.”

[How Chris got my position so completely wrong is curious given the number and length of my postings here on the topic. Though his being an academic, it is certainly possible he felt he could simply fall back on his ability to quickly master and distill what he took to be my points in order to dismiss them casually and condescendingly—an assumption that, in this case, I think, served him rather poorly.

[For the record, my position is completely opposite the position Chris ascribes to me. Not only do I not think the separation of powers is for idiots, but I believe this entire dustup is about protecting the separation of powers and keeping them properly balanced; whereas critics of the program who keep deferring to FISA seem to suggest that a President under wartime conditions (which state Congress placed the country in when it approved the AUMF) is answerable to a statute that both its legislative history and a recent FISA Review court noted was never meant to constrain the CiC’s Article II powers (powers Chris characterizes as “some sort of complete hand-waving, ‘anything goes’ … doctrine). But my position on the separation of powers question has remained clear: I believe that the appeal to FISA we are now seeing from partisan Dems, civil liberties absolutists, some congressional law scholars, and certain members of congress (from both parties) is nothing more than a transparent attempt by the legislative branch to co-opt CiC military command authority, which they then intend to outsource to an unelected FISA judge as an extraconstitutional “check” on what they are now calling imperial “unitary” powers (which, to the best of my knowledge, date back to George Washington).

[Signals intel is clearly a military operation, and the CiC is clearly provided the mandate to use the military in a way he sees fit to fight a war, provided the usage is legal. The AUMF directed him to use all legal measures within his power to protect the country both at home and abroad. Which is why, should Bush ask Congress to “expand” FISA to “allow” him to to use powers already Constitutionally apportioned him, he would be tacitly granting FISA, a congressional statute, precedence over his Article II powers—a move that disrupts the balance of powers established by the Constitution, pulling it (in my mind, unconstitutionally) in the direction of the legislative branch.

[It is important to remember that congressional checks on the president’s wartime strategic military decision-making are already constitutionally available: the Congress, if they believe the President has acted illegally, can file articles of impeachment; or they can cut funding for the program they disagree with. Tellingly, they have taken recourse in neither of these remedies to date—preferring instead to apply public pressure by creating an appearance of impropriety in the hopes Bushco will strike a compromise, and FISA can be “expanded” to grant the President authority he (and the DoJ) claim he already has.

[Even so, the NSA, the DoJ, and the administration have shown a deference to the FISA court, and have mentioned on numerous occasions that when the specific situtation required them to file for a FISA warrant, they have done so. They have submitted the program to constant review. And they have briefed key members of Congress on it on more than dozen occasions.

[Ironically, Lawrence cites Wickard v Filburn and commerce clause overreach as an analogy of the kind of wildly imperialist and unchecked authority he believes the founding fathers granted the President when they gave him the Article II mandate to protect the country ; but if he read my site with any regularity, he would have known that I have been quite critical of expansion of the commerce clause—and cited Raich as one of the worst decision of the last 50 years. But how that case applies here is unclear. Because if anything, this administration has made an attempt to bring back into balance the separation of powers; those who defer to FISA, which may prove to be unconstitutional, make clear that those powers have drifted toward the legislature and the judiciary over the years.]

Comments (50)

I realise that the WSJ is an island of contrary thought in the mainstream ocean of lockstep liberalism, but still, it’s a bit comforting to see a major national newspaper make these observations and arguments. My response to the article is AMEN!

What FISA boils down to is an attempt to further put the executive under the thumb of the judiciary, and in unconstitutional fashion. The way FISA works is that it gives a single judge the ability to overrule the considered judgment of the entire executive branch.

…is ludicrous. The judiciary’s role is to protect the constitutional and statutory rights of individual Americans.

No one is saying the judiciary has a role in military operations abroad, or even purely foreign signals intelligence. All we are saying is that when the rights of American citizens are in play—and there is no doubt that they are when Americans’ private phone calls are being targeted for surveillance—then the judiciary must have a gatekeeping role to ensure that the Executive does not abuse his powers. The idea that an ostensibly neutral judge stand between an agressive government and its citizens is a concept far older than the Fourth Amendment which embodies it.

When the exercise of Executive Article II powers extend to questionable violations of the rights of Americans, under our system, courts decide that question. Often, but not always, they side with the Executive (compare Korematsu with Keith). The fact that the Administration is loathe to allow this to happen, and thus opposes Specter’s very reasonable proposal, should give you some indication of the weakness of both their statutory and constitutional arguments.

Jeff: If the legal authorities on your side are so unassailable, and your legal argument so obviously correct, then what harm is there in letting a court confirm your position?

The idea that an ostensibly neutral judge stand between an agressive government and its citizens is a concept far older than the Fourth Amendment which embodies it.

“Ostensibly” being the key word in this sentence. My understanding of this word is that it means “professed”. Why do you assume that judges are “ostensively” neutral, yet presidents can’t be? This seems like a double-standard.

I guess you go with whom you trust. The following statement most definitely applies:

The way FISA works is that it gives a single judge the ability to overrule the considered judgment of the entire executive branch

Sorry, but I trust the president to protect me first (it’s his job constitutionally); judges second (it’s NOT their jobs).

MF, tell me who has standing to bring the suit, and how, if the whole point is that the Executive has co-equal powers with the Judicial and Legislative, we can find an authority to make the decision, and we’ll be ready to start answering.

1) I’m not sure what Specter’s exact proposal is; but I do know that Congress can get creative and bestow private rights of action upon citizens or classes of citizens. I suppose he has some idea on how he might be able to get the program in front of the entire FISA court.

2) As Jack Balkin has aptly pointed out, they want to claim their program is legal, but don’t want the judicial branch of government, whose job it is to determine what is and is not legal, to get the chance to do so with regard to the NSA program.

3) And as to your reference to co-equality, we haven’t gotten there yet, because Congress has yet to truly weigh in, and the courts have been excluded outright. The way it should work, is, that Congress should pass a law requiring the Court to review it, and if they say “OK,” then OK, but if they say, “no way,” then Bush can choose. This is where co-equality comes in. He doesn’t have to obey the courts—see Jackson, Andrew—but he runs the risk of opprobrium from a public or Congress that now knows that the judiciary thinks the program violates the law. As it currently stands, Bush gets to claim the program’s legality willy-nilly while telling the public—who wouldn’t know FISA or even Fourth Amendment jurisprudence if Chris Matthews explained it to them for five hours every night—that they’re on the verge of getting blown up by terrorists, and that they will be if Arlen Specter and the Dems have their way. So he gets to continue using a program that most legal experts agree is legally questionable at best, and highly dubious at worst—one that affects core constitutional and political values—on a cheap political balance-of-power technicality.

Judges have no standing to review foreign intelligence gathering (executive branch function checked by Congrssional power of the purse). And as it is judges have extended constitutional rights to foreign subjects, and those on foreign soil (none of which are contemplated by the Constitution, as they are subject to foreign soverigns). Judges have made law based an reasoning as silly as “penumbras formed by emanations.” (Apparently, it takes the vision of a judge to see the uncertainty between darkness and light as shed by the plain language of the Constitution.)

It follows that there is no good argument to ask someone, not authorized, to enter the fray and offer an opinion.

The ultimate check on government power is winning elections. Try it sometime.

What FISA boils down to is an attempt to further put the executive under the thumb of the judiciary, and in unconstitutional fashion. The way FISA works is that it gives a single judge the ability to overrule the considered judgment of the entire executive branch

Unlike, say, when a judge rules against the united states as a party.

But I wonder how the WSJ feels about the theory of the unitary executive. And how that mixes with giving weight to the ‘considered judgement of the entire executive branch.’ As opposed to just what the lawyer told the court.

Why do you assume that judges are Ã¢â‚¬Å“ostensivelyÃ¢â‚¬Â neutral, yet presidents canÃ¢â‚¬â„¢t be?

Thats the way it works. The one doing the law enforcement or intelligence gathering is not ‘neutral’ in that decisionmaking. They have an interest in it, as they want the search or seizure to happen. The judge doesn’t care, and is simply a neutral arbiter of whether the constitutional or statutory requirements have been met.

But I wonder how the WSJ feels about the theory of the unitary executive. And how that mixes with giving weight to the Ã¢â‚¬Ëœconsidered judgement of the entire executive branch.Ã¢â‚¬â„¢ As opposed to just what the lawyer told the court.

Why don’t you write them and ask, instead of hanging the question out there as if it somehow bespeaks some sort of sinister evil hypocrisy?

The judge doesnÃ¢â‚¬â„¢t care, and is simply a neutral arbiter of whether the constitutional or statutory requirements have been met.

Good. So then you accept when the FISA Review Court said that, constitutionally-speaking, it was not there place to constrain the Pres’s power in the area of foreign intel gathering (as has always been understood).

Glad we settled that, then.

Not that it would have mattered even had they ruled the other way, from a Constitutional perspective. Because the FISA Court can’t constrain the President’s power to fight the war under Congressional authorization that gave him the power to do so.

Instead, I continue to believe that the administrationÃ¢â‚¬â„¢s strategy, in light of the initial NYT leak, has been to bait FISA advocates (who tend to extol judicial and legislative power) into a debate that will end with 1) program critics looking weak on national security insofar as they insist on being deferential, in times of immediate danger, to unclear and contested legal statutes that raise serious separation of powers concerns, rather than in taking aggressive actions that could very well have prevented follow up attacks (couple this with their concurrent resistance to the PATRIOT Act); and 2) reassert executive power while, happily, bringing public discourse back to the topic of national defense and security, where the GOP excels.

Its refreshing you recognize that that primary and secondary motivations here are politics. What other parts of the war on terror does this extend to?

Good. So then you accept when the FISA Review Court said that, constitutionally-speaking, it was not there place to constrain the PresÃ¢â‚¬â„¢s power in the area of foreign intel gathering (as has always been understood).

What’s the precedential value of what a FISA Review court says? It appears that you think it doesn’t matter.

Why donÃ¢â‚¬â„¢t you write them and ask, instead of hanging the question out there as if it somehow bespeaks some sort of sinister evil hypocrisy?

I don’t think they’re sinister. Just hacks. Why do you think its important to bold that section? And how does it jibe with your views on the unitary executive?

Its refreshing you recognize that that primary and secondary motivations here are politics. What other parts of the war on terror does this extend to?

Well, other leaks that are meant as political attacks? To be clear, the political considerations here, as I noted, come “in light of the initial NYT leaks.” That’s a provocation for a political counter.

Although I realize that in your system, there is no such thing as a “provocation.” Just various “cycles of violence.”

WhatÃ¢â‚¬â„¢s the precedential value of what a FISA Review court says? It appears that you think it doesnÃ¢â‚¬â„¢t matter.

Well, read what I wrote: Not that it would have mattered even had they ruled the other way, from a Constitutional perspective. Because the FISA Court canÃ¢â‚¬â„¢t constrain the PresidentÃ¢â‚¬â„¢s power to fight the war under Congressional authorization that gave him the power to do so.

Just convenient that they recognized it, is all.

Why do you think its important to bold that section? And how does it jibe with your views on the unitary executive?

Bolded? Where?

And we’ve already dealt with this whole “unitary” executive meme. It’s kinda silly, actually. But if you want to push it, have at it.

To be clear, the political considerations here, as I noted, come Ã¢â‚¬Å“in light of the initial NYT leaks.Ã¢â‚¬Â ThatÃ¢â‚¬â„¢s a provocation for a political counter.

So you’re only speaking about the politics. Its not that the considerations should be politics, just, once they are, here is the course of action. I see.

Just convenient that they recognized it, is all.

So that’s how it matters. Unenforceable Dicta Ok.

Bolded? Where?

When you added your emphasis in your post.

The Ã¢â‚¬Å“unitary executiveÃ¢â‚¬Â line has nothing to do with this issue. It is just a theory regarding the powers of the President with respect to independant agencies.

I know. But here I am being told that there’s something important about the ‘whole executive branch’ agreeing with something. But yet the executive branch is, according to some people, unitary. So it doesn’t matter how many within it agree. It’s still a unit.

I think its just more WSJ hackery. Having a big executive branch that might disagree with itself isn’t a check on executive power. I’d say the bigger it is, the more important a judicial arbiter becomes.

I think this is only the case if FISA holds jurisdiction over the program in question, which I donÃ¢â‚¬â„¢t think it does (except when finessed within that jurisdiction by the positing of carefully crafted hypotheticals).

Both judges expressed concern to senior officials that the president’s program, if ever made public and challenged in court, ran a significant risk of being declared unconstitutional, according to sources familiar with their actions. Yet the judges believed they did not have the authority to rule on the president’s power to order the eavesdropping, government sources said, and focused instead on protecting the integrity of the FISA process.

One of the reasons I voted for George Bush was that I did not want foreign policy decided by Lurch, Fat Teddy, Hassan al-Gore, and the rest of the Democratic Caucus. They don’t know what they’re doing, and are ideologically blinded toward anything that might give them a clue.

MF and actus feel differently. MF is particularly amusing (actus simply being normal, for actus) in that he’s quite good at coming up with plausible Jesuitry that takes as a given things that are not at all established. It’s especially cool to hear the argument that <object to being listened to?</i>—is shouted down at max force.

…the argument that if it was legal, Bush wouldn’t mind having a judge check it. Of course the other version of that argument—if you aren’t doing anything wrong, why do you object to being listened to?—is shouted down at max force.

Of course the other version of that argumentÃ¢â‚¬â€if you arenÃ¢â‚¬â„¢t doing anything wrong, why do you object to being listened to?Ã¢â‚¬â€is shouted down at max force.

Because often people think that certain things are none of the government’s (or anyone else’s) business. Sometimes these things aren’t even wrong.

There does appear to be a deeper problem lurking in the WSJ’s analysis. They point to how the president is politically accountable. But that only works if we know what he’s doing. Are they really saying we want the public to know the details of this surveillance? FISA was set up to provide some accountability in secret, because political accountability doesn’t work for things that the public can’t know about.

Ever hear of Deep Throat. Well, he broke the law by leaking to Woodward. As law enforcement officer, he should’ve gone to the grand jury (or gone to jail).

Political accountability works because people believe in it. Mark Felt thought he was above the law, so people now have distrust, in part, due to Felt’s illegal actions. As a result, many on the left hail a law-breaker as a hero. Pretty disgusting.

FISA was set up for domestic surveillance of agents of foreign countries. You want to offer up the names of any foreign country, and their agents, communicating point-to-point domestically we’re surveilling (without a warrant)?

Didn’t think so.

Glad to hear you’re in favor of a Terrorists’ (and enablers&#8217 Bill of Rights. Just like Haupt in WW II.

I forget, did he get the death penalty he deserved, or just life imprisonment?

“All we are saying is that when the rights of American citizens are in playÃ¢â‚¬â€and there is no doubt that they are when AmericansÃ¢â‚¬â„¢ private phone calls are being targeted for surveillanceÃ¢â‚¬â€then the judiciary must have a gatekeeping role to ensure that the Executive does not abuse his powers.”

Well, here’s our problem. You call Al Qaeda, that call just became public, very public.

The Left is not actually irreligious. They have a faith that is as deep and profound as the most committed snake handler and poison drinker. Their faith is in the saintliness of judges. Consider the DemocratsÃ¢â‚¬â„¢ position regarding the NSA data mining operation. It began with a cry of outrage. It has now been reduced to the acquiescence of its continuation, just as long as it is blessed by the sacred hand of a judge. The position of the Left is now reduced to: spy on me without judicial blessing and itÃ¢â‚¬â„¢s a sin, spy on me with judicial blessing and your legal virginity is restored.

Keep in mind that these paragons of ethical purity upheld slavery (Dred Scott), upheld segregation (Plessy vs. Ferguson), decreed that growing wheat for your own use involved interstate commerce (Wickard vs. Filburn), blessed sending over 100,000 Americans of Japanese ancestry to concentration camps (Korematsu v. United States) , and had no problem determining that aborting your child was a private matter and could be done until the child had completely left the motherÃ¢â‚¬â„¢s body (Roe v. Wade).

A law which carries no sanctions, provides no punishment, is institutionalized carping. Congress can’t jail, fine, or execute the President, who as Executive has charge of all the means of doing so. The only thing it can do is either impeach or withhold funding, and since you and the rest of the Democrats have made it abundantly clear that the only basis upon which Congress can act is pure simple partisanship neither of those tools is useful as a means of discipline at the moment.

What Congress is doing is posturing, posing for the eventual political ads. We will find out this Fall how effective that is.

Thats true with every law, whether its got something to do with Art II or no. I’m asking about a statutory scheme that makes sure the president stays within the warmaking power. Of course the president can break the law and ignore it.

Now actus, youÃ¢â‚¬â„¢re being naive (to say it nicely) if you think this is the case.

Its also naive to think a single president following political pressure can protect us. Its these two naivetes that are made to compete with each other. The system isn’t made better by adding in a foolproof or fail-safe or uncorruptible element or check somewhere. The system is made better by adding a check with different motivations and powers.

I’m still not terribly bothered if the government listens to my phone calls. I’m bothered even less if the government listens to your phone calls. And I care not a whit if they listen to slimy, traitorous maggots who communicate with the enemies of my Nation.

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